ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

DAVID GENE HOUSE, )

)

Employee, )

Applicant, ) DECISION AND ORDER

)

v. ) AWCB Case No. 9027483

)

NORTH SLOPE BOROUGH, ) AWCB Decision No. 94-0006

(SELF-INSURED), )

) Filed with AWCB Fairbanks

Employer, ) January 10, 1994

Defendant. )

________________________________________)

This claim for temporary total disability (TTD) benefits and attorney fees and costs was heard at Fairbanks, Alaska on December 14, 1993. The employee was represented by attorney Chancy Croft; attorney Michael McConahy represented the defendant. The record closed at the end of the hearing.

It is undisputed the employee suffered a low back injury when he slipped on icy stairs while working for the employer as a flight instructor on October 15, 1990. He was diagnosed as having a ruptured disc at L4-5, on the left, with compression of the left L4-5 nerve root. The employee's claim was accepted and TTD and medical benefits were paid.

On February 18, 1991, the employee underwent an extraforaminal discectomy performed by Michael Kendrick, M.D. The surgery relieved his leg pain but his low back pain continued. In May 1991, the employee was given a conditional release to work. Later, effective August 21, 1991, the adjuster controverted the employee's TTD benefits, claiming he had reached medical stability 45 days earlier. Meanwhile, the employee found he was unable to return to work.[1] Conservative medical treatment produced no improvement and his low back pain worsened. Finally, he underwent a second surgery by Dr. Kendrick on September 29, 1993. The procedure included a lumbar laminectomy with a two level posterolateral fusion, L4-Sl, and segmental fixation with Dynalok pedicle screws and plates. The second surgery provided complete relief from his chronic low back pain.

The threshold issue we are asked to decide is the employee's entitlement to TTD from August 23, 1991 through September 28, 1993. All other contested issues in this case were settled in a Compromise and Release (C&R), approved on December 7, 1993.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Alaska Workers’ Compensation Act defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.265(10). The Act provides for benefits at 80% of the employee's spendable weekly wage while the disability is "total in character but temporary in quality," AS 23.30.185, but doesn't define TTD. Nevertheless, § 185 does limit the duration of TTD to the date of medical stability. AS 23.30.265(21) defines medical stability:

"medical stability" means the date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days;

Moreover, Bailey v. Litwin Corp., 713 P.2d 249 (Alaska 1986),. "stands for the proposition that 'medical stability is irrelevant in determining cessation of TTD benefits if the employee has returned to work." Olson v. AIC/Martin J.V., 818 P.2d 669, 673 (Alaska 1991). It TTD benefits are to be terminated because the employee has returned to work, however, it must be shown that the employee is capable of steady and readily available employment. Id. at 674. Thus, under AS 23.30.185 and 265(10) and the case law, TTD ceases when 1) the employee reaches medical stability, or 2) the employee has returned to steady and readily available employment, whichever cones first.

"AS 23.30.120(a)(1) creates the presumption of a compensable disability once the employee has established a preliminary link between employment and injury." Wien Air Alaska v. Kramer, 307 P.2d 471, 474 (Alaska 1991) . That the employee "suffered a work related injury for which he received compensation from [the employer] is sufficient to establish a preliminary link between his employment and his continuing disability thus implicating AS 23.30.120(a)." Id. at 474, n.6.

The defendant argues the employee's entitlement to TTD ended on August 21, 1991 because he had been released to regular, although not heavy, work. Thereafter, relying on EME reports by neurologist Joel Seres, M.D. and medical psychologist Richard Newman, Ph.D., prepared in September 1993, the defendant also claims the employee was medically stable by August 21, 1991 because his condition had not improved within the previous 45 days.

The medical records in this case are hazy on both points. Although Dr. Kendrick released the employee to moderate work, the employee found he was unable to meet the job requirements. Thereafter, when prescribed physical therapy on a Nautilus machine, he found he was able to perform continuous exercise only 22 minutes of a 45 minute program. On August 11, 1992, Dr. Kendrick noted the employee's condition had not improved and requested authorization from the adjuster to order MRI testing. The request was denied but was authorized by his private health insurer. Finally, when conservative treatment did not improve the employee's condition, the second surgery was scheduled.

Meanwhile, the first employer-requested medical evaluation (EME) was not held until September 14, 1993. Although Drs. Seres and Newman concluded the employee probably had been medically stable since April 18, 1991, they restricted him to sedentary to light duty work and modification of the job site. When asked whether the employee could work as a commercial pilot, they responded there was “no medical or psychological contraindication to it."

Additionally, the employer scheduled the employee for an examination by senior aviation medical examiner Douglas Day, M.D., concerning the employee's medical qualifications for flight certification. Dr. Day concluded that "this patient's statement of pain would disqualify him for passing the Airman Medical Certificate."

In sum, assuming the "release to work" or the inference of a lack of medical improvement for 45 days raises a presumption of medical stability, we find substantial evidence to the contrary in the employee's testimony and the medical opinions that the employee could not perform the required work duties with his previous employer or at any other steady and readily available job. We also find such substantial evidence in the employee's testimony and in Dr. Kendrick's opinion that the employee's condition has objectively improved since his second surgery.

Additionally, based on the medical record and the employee's testimony, we find the employee has established a presumption of continuing compensability in this case. To overcome the presumption, the defendant relies, in part, on Dr. Kendrick's modified "release to work" and on Drs. Seres and Newman's opinions the employee had been medically stable since April 1991. We find, however, that eventually all examining and treating physicians, including Dr. Kendrick, concluded the employee could not do the work as assigned and the employee's condition did not improve after the modified release to work. Dr. Kendrick predicted it would improve with surgery. We find these medical opinions are inconsistent and uncertain. Since uncertainty as to the substance of medical testimony must be resolved in favor of the employee, we find the defendant has not submitted substantial evidence of medical stability, during the contested period, to overcome the presumption. See, Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 933 (Alaska 1970). Additionally, the defendant has not shown that the employee was capable of any other steady and readily available employment, during the disputed period, in order to overcome the presumption.

Even if the defendant has submitted substantial evidence to overcome the presumption, we would find the employee proved his claim by a preponderance of the evidence. It is undisputed that his medical condition has improved since the time of his second surgery, thus demonstrating he was not medically stable. Additionally, there was no showing that he could do the work required by the employer or that any other jobs were steady and readily available within his capabilities, during the period of his claim. Accordingly, we conclude the employee is entitled to an award of TTD benefits covering the period of August 23, 1991 through September 28, 1993. The defendant shall also pay the employee interest on this unpaid compensation pursuant to Land and Marine Rental Company v. Rawls, 686 P.2d 1187 (Alaska 1984).

Attorney Croft requests an award of the higher of statutory minimum attorney fees or reasonable attorney fees, and costs under AS 23.30.145. According to his affidavits of attorney fees and costs, he has received $5,690 in statutory fees under the terms of the C&R approved on December 7, 1993. Under the terms of this Decision & Order, he would be entitled to an additional fee of approximately $5,000. According to his affidavits, and his testimony at hearing, he has incurred nearly $9,000 in total actual costs and fees for all work done on this case. Since the statutory minimum figure seems to be the higher of the two figures, we conclude we are required to award this minimum amount pursuant to subsection 145(a). We direct the defendant to pay this amount. Additionally, the defendant shall pay the employee's litigation costs pursuant to subsection 145(b). We reserve jurisdiction to resolve any dispute on specific calculations.

ORDER

1. The defendant shall pay the employee TTD and interest covering the period of August 24, 1991 through September 28, 1993.

2. The defendant shall pay the employee attorney fees and costs in accordance with this decision. We reserve jurisdiction to resolve disputes.

Dated at Fairbanks, Alaska this 10th day of January 1994.

ALASKA WORKERS’ COMPENSATION BOARD

/s/ Fred G. Brown

Fred G. Brown,

Designated Chairman

/s/ Ray Kimberlin

Ray Kimberlin, Member

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 25 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of David Gene House, employee / applicant; v. North Slope Borough (self-insured) , employer / defendant; Case No.9027483; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 10th day Of, January 1994.

Cathy P. Hill, Clerk

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    [1]The job of Flight Instructor involved both class room instruction and actual flying. As the pilot of a small plane the employee was required to fuel his own plane. This consisted of hauling a fuel hose which, when full, weighed in excess of 70 pounds to the plane and manually lifting the nozzle to the wing tank opening located on top of the wing. He was also required to load and unload the plane. As a pilot in the Arctic, he was required to carry survival gear for himself and his passengers. The packs of survival gear weighed approximately 50-60 pounds each. In addition, it was his responsibility to remove snow and also de-ice the plane. He was required to manually drag or push the plane out of its parking place in order to prepare it for use. If snow had drifted around it, he had to shovel a clear path for the plane. As a flight instructor he had to prepare the plane as many as 3 times in one day.

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